MICHEL L. TILLEY, PETITIONER V. UNITED STATES OF AMERICA
No. 87-825
In the Supreme Court of the United States
October Term, 1987
On Petition for a Writ of Certiorari to the United States Court of
Military Appeals
Memorandum for the United States in Opposition
Petitioner claims that his court-martial panel was improperly
selected.
1. Following a general court-martial at the Rhein-Main Air Base in
West Germany, petitioner, an enlisted member of the United States Air
Force, was convicted of unpremeditated murder, in violation of Article
118(2) of the Uniform Code of Military Justice (UCMJ), 10 U.S.C.
918(2). He was sentenced to 18 years' confinement, a dishonorable
discharge, forfeiture of all pay and allowances, and reduction to the
lowest enlisted grade. The convening authority approved the findings
and sentence. The Air Force Court of Military Review (Pet. App.
8a-13a) and the Court of Military Appeals (Pet. App. 1a-6a; 25 M.J.
20) affirmed.
Article 25(d)(2) of the UCMJ, 10 U.S.C. 825(d)(2), establishes the
procedure for the selection of court-martial panel members. It
directs the court-martial convening authority to select "such members
of the armed forces as, in his opinion, are best qualified for the
duty by reason of age, education, training, experience, length of
service, and judicial temperament." /1/ Before the court-martial panel
is assembled, the convening authority is free to add, delete, or
substitute panel members. Arts. 25, and 29, UCMJ, 10 U.S.C. (& Supp.
IV) 825, and 829.
In this case, an assistant staff judge advocate at the Rhein-Main
Air Base, Captain Secours, prepared a list of 25 potential
court-martial panel members (AX 1). /2/ Captain Secours had
participated at a pretrial hearing on the issue whether petitioner
should be confined pending trial. That list was forwarded by a letter
dated March 19, 1984, to the special court-martial convening authority
over the signature of Captain Sweet, who served as an assistant
prosecutor in petitioner's case (ibid.). Captain Sweet's only
involvement in the process of selecting the names of the potential
court-martial members was the ministerial act of signing the letter
(R. 12). The special court-martial convening authority in turn
forwarded the 25 names to the general court-martial convening
authority by a letter dated March 19, 1984. The general court-martial
convening authority thereafter selected nine panel members from that
list. Pet. App. 9a-10a.
In a pre-trial motion, petitioner challenged the prosecutors'
participation in the process of recommending court-martial panel
members and sought the appointment of a new panel (AX 1). In order to
avoid any appearance of impropriety, the convening authority granted
petitioner's motion and directed the staff judge advocate to prepare a
new list from which the convening authority could select another panel
(Pet. App. 10a). The staff judge advocate directed Captain Parkhill,
who had no prior involvement in petitioner's case, to prepare the new
list (ibid.; R. 17).
Captain Parkhill then obtained a list of the officers who were
assigned to the base. From that list, Captain Parkhill deleted the
names of the officers who would be unavailable to serve at trial,
those who had some knowledge of the case, and those who had been on
the first list. That process resulted in a second list of 15
recommended officers (R. 18, 21, 24-25). /3/ After having background
data sheets completed on those 15 officers, Captain Parkhill forwarded
their names and the background information to the special
court-martial convening authority. The special court-martial
convening authority, in turn, forwarded the list to the general
court-martial convening authority along with his recommendations as to
which members should be selected (AX 3).
Captain Parkhill subsequently determined that three officers from
the original list of 25 were also available to serve on the
court-martial panel (R. 20). He forwarded those three names to the
staff judge advocate of the general court-martial convening authority
by a letter dated May 30, 1984. Colonel McGovern, one of the three
officers named in Captain Parkhill's letter, was among the officers
selected by the convening authority for petitioner's court-martial
panel. The convening authority, however, obtained Colonel McGovern's
name from another source, not from Captain Parkhill's letter. Colonel
Horton, a second officer whose name had been on the first list, was
also chosen for the court-martial panel assigned to petitioner's case.
Colonel Horton's name had not been listed in Captain Parkhill's
letter and thus, like Colonel McGovern's name, was obtained from
another source. See AX 2, at 8; AX 4, at 10.
At trial, petitioner contended that the presence of Colonels Horton
and McGovern on his court-martial panel gave rise to an appearance of
impropriety. Petitioner also challenged them for cause based on the
allegedly defective selection procedure. The trial judge found no
appearance of impropriety and denied petitioner's for-cause challenge
(R. 31, 37).
2. Petitioner's claim is quite narrow. He does not contend that
the court-martial panel selection process adopted by Congress and
authorized by Article 25(d)(2), 10 U.S.C. 825(d)(2), is
unconstitutional. Nor does he claim that either Colonel Horton or
Colonel McGovern was biased in any way. Instead, petitioner argues
that their presence on his court-martial panel gave rise to an
appearance of impropriety because they were named on the original list
of recommended panel members that was forwarded to the convening
authority over the assistant prosecutor's signature. That fact-bound
claim does not warrant review by this Court.
Even if there was some flaw in the original selection process, /4/
it was cured by the process used to select the second panel -- the one
that actually heard petitioner's case. That panel was not selected
from the list prepared by the assistant prosecutor. Rather, it was
selected from the new list prepared by an assistant staff judge
advocate who was not involved in the prosecution and from other
sources considered by the convening authority. The fact that two
officers who had been on the original list of proposed panel members
were also on the second list of proposed panel members did not taint
the process that was used to obtain that list, since the convening
authority was free to select names from any source and was not in any
way dependent upon, or directed by, the contents of the first list.
Although the convening authority selected the names of two officers
who had been on that list, the convening authority did not choose them
from that list or from Captain Parkhill's letter. Thus, even on
petitioner's assumption that the first list was somehow tainted, the
conveninig authority's process of selecting court-martial members was
not in any way affected by the method by which that list was compiled.
/5/
It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.
CHARLES FRIED
Solicitor General
JOE R. LAMPORT
Col., OJAG, USAF
ROBERT E. GIOVAGNONI
Lt. Col., OJAG, USAF
MORRIS A. TANNER, JR.
Lt. Col., OJAG, USAF Appellate Government Counsel Government
Trial and Appellate Counsel Division
JANUARY 1988
/1/ A "convening authority" is a commander who is authorized to
convene a court-martial pursuant to Articles 22-24 of the UCMJ, 10
U.S.C. (& Supp. IV) 822-824, and Rule for Courts-Martial 504, Manual
for Courts-Martial, United States -- 1984 (Manual). The duties of the
convening authority include the selection and appointment of
court-martial panel members (a practice commonly known as "detailing"
members of a court-martial), directing that the defendant be tried by
the court-martial for the charged offense (a practice commonly known
as the "referral" of charges to a court-martial), and conducting a
post-trial review of the proceedings. See Arts. 25, 34, and 60, UCMJ,
10 U.S.C. (& Supp. IV) 825, 834, and 860; see also Rules 503, 601,
and 1107, Manual.
/2/ The commander at Rhein-Main exercises special court-martial
jurisdiction. General court-martial jurisdiction is exercised by the
commander of the 17th Air Force at Sembach Air Force Base in West
Germany.
/3/ Petitioner complains (Pet. 5) that Captain Parkhill had at
least a casual knowledge of the 15 persons he recommended to the
convening authority. That is hardly surprising, however, since there
are only some 300-400 officers assigned to the base and since Captain
Parkhill had served there for three years (R. 22, 25). In any event,
Captain Parkhill was in the process of recommending members having the
qualifictions prescribed by Article 25(d)(2) of the UCMJ, and he could
not make appropriate recommendations without some knowledge about the
persons he listed.
/4/ Prior military decisions have emphasized the distinction
between purely ministerial actions performed by a prosecutor during
the court-martial panel selection process and a more substantive
involvement in recommending the selection of panel members. Only the
latter, the military courts have held, invalidates the selection
process. Compare United States v. Sax, 19 C.M.R. 826, 836-838
(A.F.B.R. 1954) (trial counsel's signature on letter recommending
court members so it could be sent to convening authority did not
invalidate selection process), with United States v. Cook, 18 C.M.R.
715 (A.F.B.R. 1954) (selection of court-martial panel members by
prosecutor held invalid). The prosecuting attorney's involvement in
the selection process was purely ministerial; it consisted simply of
forwarding over her signature a letter containing a list of
recommended panel members. The list was prepared by someone else, an
assistant staff judge advocate whose only involvement in the case was
at a pretrial confinement hearing. It is not clear whether petitioner
challenges that attorney's participation in the process of selecting
the court-martial members. In any event, for the reasons given in the
text, that attorney's participation was ultimately rendered immaterial
once the new list was prepared for the convening authority by Captain
Parkhill.
/5/ Petitioner suggests in passing (Pet. 8) that there is something
more generally amiss about permitting staff judge advocates to select
the list of proposed court-martial members, even when the assistant
staff judge advocate who composes the list is not involved in the
prosecution. Petitioner, however, did not make that argument to the
trial court and thus has waived it.